...the Times persistently and disingenuously portrays the Pentagon Papers case as "proof" the Espionage Act cannot be used against journalists. But many, if not a majority, of the justices in that case opined that they would not entertain injunctive relief (i.e., the Act did not allow government to stop prior publication, but they may well have supported prosecution had the Times gone ahead and published). This is yet another inconvenient truth Bill Keller et al think the reading public ought to be shielded from, his much-ballyhoo'd ethic of complete disclosure notwithstanding.

U.S. District Judge T.S. Ellis III rejected defense efforts to dismiss the indictments against Steven J. Rosen and Keith Weissman, former employees of the American Israel Public Affairs Committee, or AIPAC. They are charged in what the government calls a conspiracy to obtain classified information and pass it to members of the media and the Israeli government.

Ellis acknowledged that the case "implicates the core values of the 1st Amendment" and that lobbyists and others in Washington pass along information every day that is "indispensable to the healthy functioning of a representative government.'' But he said Rosen and Weissman -- and others outside the government -- can be prosecuted if the government feels they disclosed information harmful to national security.

The decision alarmed First Amendment advocates who were already concerned about the unprecedented nature of the case. The lobbyists are the first nongovernment civilians charged under the 1917 espionage statute with verbally receiving and transmitting national defense information.

"This decision is breathtaking. It is a bold new interpretation of the Espionage Act that expands its reach dramatically,'' said Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists.

As one basis for his decision, Ellis cited the landmark 1971 Pentagon Papers case, in which the U.S. Supreme Court allowed the New York Times, The Washington Post and others to publish a secret study of U.S. involvement in Vietnam. If the Nixon Administration had sought to prosecute the newspapers under the Espionage Act instead of blocking publication, Ellis said, "the result may have been different.''

Legal and privacy experts said Ellis may have opened the door to criminal prosecutions of reporters or newspapers for publishing classified information. The possibility of such prosecutions has swirled around Washington since the New York Times broke a story last December about the National Security Agency's surveillance of terrorist-related calls between the United States and abroad.

Kate Martin, director for the Center for National Security Studies in Washington, said the ruling "gives the Justice Department the green light to prosecute reporters and investigate them as potential criminal actors and not simply as witnesses.''

The language of Ellis' ruling, via Jonathan Adler, makes mincemeat of the most common arguments used by the press to defend their publication of classified information, namely:

1. All the press need do is assert some vague "compelling public interest" or "need to know" argument and they can unilaterally and without oversight or authority bypass the House Permanent Select Committee on Intelligence and release classified information directly to the public.

Wow. Can I do that too? Can anyone? How about Joe SixPack down the street? Or is a press pass required before one can make major national security decisions on behalf of the American public?

The arrogance implied in this assumption is, quite literally, breathtaking. I made this case before in my Unitary Editor post. It seems passing strange that Keller's entire justification for leaking classified information is that, in order to block what he views as an unsanctioned power grab by the Executive branch, an unelected and unappointed editor of a major newspaper has arrogated to himself the role of Decider. Question: who gets to check Bill Keller? Answer: because of his arbitrary and creative interpretation of the First Amendment, no one.

2. The press are entitled to ignore the Espionage Act because it is unconstitutional, outdated, has never been enforced, or does not apply to journalists. So much for the rule of law, or for the argument that we must reign in the Executive Branch because it isn't listening to Congress... by allowing the press to ignore laws passed by Congress.

3. Ensuring a "national debate, in and of itself, is a good enough reason for releasing classified information. Yet another stunner. We don't live in a pure democracy. We live in a Republic.

Not everything which occurs in our government is open to public debate. For instance, when my husband goes up for promotion, those records aren't open to the public because his social security number and private information are not part of the public record. If everything the government did had to be fully transparent, government would quickly grind to a halt. I suggest that if Mr. Keller is such an admirer of full transparency, let's start with the Times: let him reveal all the names of those anonymous sources the Times so loves to quote. Because the public has a right to know where the Times is getting all of this information from so we can have a public debate about it. Not a terribly compelling argument, is it? Sometimes there are good reasons for keeping things secret.

At any rate, Judge Ellis' opinion ought to sound alarm bells in more than a few editors' offices across this great nation:

both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.

...the government must . . . prove that the person alleged to have violated these provisions knew the nature of the information, knew that the person with whom they were communicating was not entitled to the information, and knew that such communication was illegal, but proceeded nonetheless. . . . [And] with respect only to intangible information, the government must prove that the defendant had a reason to believe that the disclosure of the information could harm the United States or aid a foreign nation, which the Supreme Court has interpreted as a requirement of bad faith.

...The conclusion that the [Ed. Note: Espionage Act] statute is constitutionally permissible does not reflect a judgment about whether Congress could strike a more appropriate balance between these competing interests, or whether a more carefully drawn statute could better serve both the national security and the value of public debate. . . . the time is ripe for Congress to engage in a thorough review and revision of these provisions to ensure that they reflect both these changes, and contemporary views about the appropriate balance between our nation’s security and our citizens’ ability to engage in public debate about the United States’ conduct in the society of nations.

Sometimes we get what we ask for, and it turns out not to be quite what we hoped. I think Bill Keller has gotten his public debate on national security, and I do believe he's about to find out that the American people don't share his flexible urban sensibilities.

According to Treasury and Justice Department officials familiar with the briefings their senior leadership undertook with editors and reporters from the New York Times and Los Angeles Times, the media outlets were told that their reports on the SWIFT financial tracking system presented risks for three ongoing terrorism financing investigations. Despite this information, both papers chose to move forward with their stories.

These were off the record meetings set up to dissuade them from reporting on SWIFT, and we thought the pressing nature of the investigations might sway them, but they didn’t,” says a Treasury official.

In fact, according to a Justice Department official, one of the reporters involved with the story was caught attempting to gain more details about one of the investigations through different sources. “We believe it was to include it in their story,” says the official.

I cannot remember a day when that briefing did not include at least one terrorism lead from this program. Despite attempts at secrecy, terrorist facilitators have continued to use the international banking system to send money to one another, even after September 11th. This disclosure compromised one of our most valuable programs and will only make our efforts to track terrorist financing --and to prevent terrorist attacks-- harder. Tracking terrorist money trails is difficult enough without having our sources and methods reported on the front page newspapers.

No, somehow I do not think it will be difficult to show that the Times (or any reasonable actor, for that matter) would have known full well what it was doing.

Posted by Cassandra at August 11, 2006 07:39 AM

Comments

It is worth noting that it is, in fact, a "bold new ruling," which means that it may be vulnerable on appeal. When a court abandons the usual understanding of how the law applies, it takes a greater risk of being overturned.

Steven Aftergood and I are on the same page about a lot of things, although he is anti-Bush and I am (obviously) not. Still, having received his weekly bulletins for years, I find I often agree with his assessment of secrecy issues.

Traditionally, you can only charge someone for revealing classified information if they had the security clearance to get that information legitimately. This is becuase the crime actually occurs when the information crosses the boundary between someone who has the security clearance, and someone who doesn't. The reasons for this should be obvious... if someone leaks information to you, and doesn't tell you it was classified, you can't really be blamed if that information gets around...the person who told it to you should be.

Furthermore, the point of wistleblower protection is that if the government is doing something illegal, it is very easy to cover it up by classifying things, etc... I personally believe that if someone leaks information about illegal activities, they should be rewarded, not punished. To punish a whistleblower is to make the argument that government should be allowed to act illegally with no repurcussions. the constitution will not abide such a thing.

1. After all, all one need do, if one has a security clearance and one doesn't want to do what the law requires and go through the House Permanent Select Committee on Intelligence, which is the channel for oversight provided for whistleblowers, NOT THE NEW YORK TIMES, is find a third party and hand off the information to them.

2. if someone leaks information to you, and doesn't tell you it was classified, you can't really be blamed if that information gets around

Judge Ellis' opinion clearly stated that you had to know the information was classified. This clearly has nothing whatever to do with the Times scenario, where Keller and Lichtblau knew the information was classified, knew that the proper venue for concerns about handling of classified info was the House committee, and yet chose to reveal it anyway, clearly knowing it would "get around", unless you think by some bizarre happenstance that the front pages of the NYT don't constitute "publication".

What those who want to excuse the NYT never answer (and even you, Grim, don't seem to be addressing this question) is this:

Why didn't the Times take this information to the House Select Committee on Intelligence? This would have accomplished what Keller says he wanted to accomplish, without endangering national security and without breaking the law.

He knew he was not authorized to that information.

He knew it was classified.

If he was concerned about oversight, he could have ensured oversight by reporting to the House. It is not his place to bypass Congress (ironically, exactly what he accuses the White House of doing, except that he is neither elected nor appointed to represent the American people) or breaking the law. We do not get to choose which laws we will obey, even if we are editors of the NYT.

There are other legal means of reporting alleged illegal activities. You do it in-house and not to the media as a leak.

The only motive to leak classified information to the media is to vent a distrust of our form of government and undermine it's effectiveness.

It is illegal to leak classified information. The newspaper should have turned it over to the authorities as the breach of security it was.

Aghast, what you are saying is that you don't trust our elected officials to obey the law. You need to reflect on that statement because it encourages the very illegal activities you condemn the government of engaging in.

Problem is Aghast, it has to be illegal to begin with. Maybe you have proof the rest of us don't?

I suggest you tell the Grunts on the ground that have had to put up with ramped up IED, VBIED, and suicide attacks directly related to the $$$$ flow opening back up. Need proof? Check the
numbers and dates. Easy enough to do. No, when you intentionally publish a story that directly leads to an increase in enemy activity when that story described nothing illegal but instead gave away intelligence secrets after being asked not to make it known that story qualifies as sedition. Premeditated with aforethought.

Like the diagrams detailing how to defeat our body armor. Show me where any of this is "protected" by any 1st Amendment rights or can be construed as a form of "whistleblowing". The Constitution won't abide it but Arlington will eh?

I personally believe that if someone leaks information about illegal activities, they should be rewarded, not punished.

And if the whistleblower leaked the info to the legitimate body for reporting illegal activities: The House Permanent Select Committee on Intelligence, you would be correct. Helk, even if they went to their congresscritter, or even just *a* congresscritter, we'd all be OK with it. The gov't isn't near that monolithic that something illegal/unconstitutional would be ignored. The NYT is most definitely *not* the right place to go. That's no longer whistleblowing.

To punish a whistleblower is to make the argument that government should be allowed to act illegally with no repurcussions. the constitution will not abide such a thing.

Again, the gov't is not nearly as monolithic as to be able to act illegally with no repurcussions if such activites are brought to the attentions of the other party. Those who want to blow the whistle today would find easy allies in Pelosi, Biden, Boxer, Kennedy et al. Not exactly puppets of the Bush Admin those.

Running to the NYT isn't about solving abuses, it's about winning a political and propaganda victory regardless of the cost. It's beyond "My country right or wrong", it's "My Party right or wrong".

"Why didn't the Times take this information to the House Select Committee on Intelligence? This would have accomplished what Keller says he wanted to accomplish, without endangering national security and without breaking the law."

First of all, the question of whether they broke the law is still open. This ruling says they did. Before the ruling, the precedents said they hadn't. The next ruling may overturn it -- is likely to overturn it, given that it is a radical departure from earlier understandings -- in which case they didn't again. Or it may sustain it, in which case they really did.

Second, if I were the NYT and wished to answer the charge, I would say that there is no more certain way of ensuring that the matter gets taken up by the House than by publishing it. It's like submitting it to the house, except that everyone knows its been submitted, and is watching what the Congress does. Thus, you ensure that there will be some sort of action taken.

Third, I don't wish to defend the NYT, so I won't say that. I merely point out that it's what they ought to say, if they wished to answer you. I think they were ethically wrong to publish the information. I only disagree as to whether they were legally wrong.

That is to say, I think they can go to Hell; but I'm not sure they should go to jail.

"Why didn't the Times take this information to the House Select Committee on Intelligence?"

You have got to be kidding me. This House has proven worthless and incapable of anything but spending public money. When the system is owned by one party, the press truly does become the 4th branch. You can bitch and moan all you want, but with the internet the idea that you can quash bad news by classifying and it and then bullying reporters won't work.

And, if the president was a Democrat and you believed his actions to be illegal then I have absolutely no doubt you would eagerly await the publishing of this type of information and defend it to the death. You simply cannot make a 'follow the law' argument with a straight face. Your smirk is showing.

And Adam, you are wrong. You have no idea what I would say if a Democrat were in office. I thought it was wrong and stupid to allow prosecution of Clinton (though I really disliked the man) for his admitted lawbreaking in the Jones case because of the abuses which followed. Of course he was later convicted even though Congress didn't do its duty, but whatever. The whole thing was an embarrassing episode. Sadly, once that door was opened we all saw what a travesty occurred but if you allow charges to be pressed like that and then you have to follow through. Dumb, dumb, dumb.

The party of the President in office is immaterial. You are making an "ends justify the means" argument for breaking the law whenever you happen to lose an election. Amusing, but that is nothing but an excuse for anarchy.

"The party of the President in office is immaterial. You are making an "ends justify the means" argument for breaking the law whenever you happen to lose an election."

Actually I am making a common sense argument. The 'prosecution of Clinton' as you call it is besides the point. A sexual encounter and the lying about it is nothing compared to the loss of liberty and freedom that this White House seems intent on pushing.

If a Democratic president did things to take away your freedoms you would fight for the right of the press to report it, especially if you think it is A) unconsitutional and B) illegal. To argue otherwise is saying that you are some kind of 'pro-presidential' power believer at any cost no matter why or which party is behind it.

Personally, I don't really believe you think that. This is 'your' president and 'your' party and your instinct is to agree with it and them.

The party of the President in office is immaterial. You are making an "ends justify the means" argument for breaking the law whenever you happen to lose an election. Amusing, but that is nothing but an excuse for anarchy.

However, I don't think your restatement of my beliefs is accurate either. You don't get to arbitrarily recharacterize my position in order to win the argument, which is what you are doing.

That isn't an honest debating tactic.

The entire purpose of classifying information is... (duh) so that it will remain secret.

To speciously argue that any person who, on no proof whatsoever, has "doubts" that the government is acting appropriately can simply reveal those secrets is ludicrous.

We all have doubts. But we all don't get to just reveal classified information every time we feel suspicious.

We have laws, courts, Congressional oversight committees set up so people won't do exactly what Bill Keller did. And he doesn't get to just up and arbitrarily say "I am above the law" just because he is unhappy that (as you so transparently argue) the Democrats lost some elections and the Republicans control the government.

snip - "You simply cannot make a 'follow the law' argument with a straight face. Your smirk is showing."

Uh, that's not a smirk but then I doubt if you attend many military funerals. It's not a smirk, trust me. Who knows Adam? You could be one of the Few and burying your Brothers due to a conscious effort to aid and comfort the very enemy you are fighting be the 4th Estate might not be a problem for you. It is to some of us.

There is your disconnect and the ever widening gulf between you and me. I don't think ANY political party should play politics when our military is in harm's way. Certainly not a 4th Estate that hasn't been elected to squat. How much is enough? How many do we bury before you get your head out of where the sun don't shine and quit playing partisan politics simply because you hate the administration in power? Vote 'em out if you don't like them. Just please don't try to say that Keller and the NYT care one whit for the young heroes sacrificing daily for your protection. The NYT has one agenda and one agenda only and it sure as hell doesn't involve backing this country. We get it already.

I totally disgree with you Grim. But you knew that already. The first couple of times Keller and the NYT published stories "leaked" to them I gave them the benefit of the doubt. When they intentionally published stories on how to defeat our body armor (complete with diagrams showing the angles the muj should use) and something that is a legal and critical use like SWIFT then they stepped over the line. NSA helped bring down this latest threat yet the program was another "leaked" source the legalities of which have not been disproven. SWIFT was totally different and not even a gray area of the law. No, they knew going in that it was a totally legal function and that old son is premeditation. Pure and simple.

Where do we vote them out of office? With our wallets? How do we hold them accountable for getting Marines killed? Not buy their paper? How do we take them to task when they willing and purposefully pick up the mantle of sedition? Frankly I think the law is quite clear on what Keller did. He flirted with it before but like all egomaniacs he believed in his own superiority and invinciblity thereby totally flaunting the law. So.Be.It!

I think the question here is 'What exactly is a loss of liberty and freedoms?' and how it is defined. For some, as it seems by Adam's argument, any restriction upon the press in a legal manner constitutes this loss. For others here, the fact that the press has the freedom to say what it wants regardless of the reprocussion of their actions will lead to the loss. For the most part, I would agree with Adam's idea of loss of liberty and freedom.

... but that's if you look at the needs in a vacuum. Our situation here is *not* in a vacuum. We do not live in a world free of people plotting to steal planes and blow them up into other people. We do not live in a world where Jews and Lebanese live side by side in harmony. We do not live in a world where Iran is a peaceful country not determined to build a bomb while hating the West. Our times require a responsible press... not a rebellious press. And as is, they are not responsible when something bigger is at stake.

"You could be one of the Few and burying your Brothers due to a conscious effort to aid and comfort the very enemy you are fighting be the 4th Estate might not be a problem for you. "'

This is the way you get to discount my points about A) Unconstitutional and B) Illegal. I WANT the White House to fight terror and get the bad guys. However, I WANT them to do it within the law. You say we have to trust...I say this administration lost that long ago.

If they want the benefit of the doubt they need to earn that trust. I am not a Democrat. I am a military vet who voted Republican every election until 2004. What drove me away was the speed and ease this administration was willing to throw away hard earned liberties and laws. I am idealistic enough to believe we can fight the enemy and win without destroying the very things that make us different from them. I am idealistic enough to believe that we can fight the terrorists by not only using the military, but also finding ways to improve the environments that spit out these young, educated Muslem males so frustrated that they are easy to brainwash. I am idealistic enough to believe that we didn't need to invade Iraq to win this war.

Strangely enough, I personally view it as a "loss of my liberty and freedoms" when some unelected and unappointed jerk takes in on himself to unilaterally decide for himself when he can "declassify" information.

Just who gave him that right? Do I have that right? Do you? Does any American with a personal opinion?

We might as well not have classified information then. Abolish the CIA, the NSA, all of our military.

Get rid of them. Because according to you and Bill Keller, no governmental agency has the right to keep a single secret if ANY citizen expresses a doubt about whether government is acting within the law.

They could be wrong.

They could be nuts.

Who knows?

And I have no fricking right to see them held accountable under law, according to you.

That disturbs me, Adam. Greatly.

There has to be some kind of process here, not just some arrogant guy who decides for himself that he will declassify information. And that's what Eric Lictblau and Bill Keller did.

I thought we were talking about the MSM Adam? Or do you consider them to be the same? One is elected the other is not. Frankly I'm tired of seeing them get away with what they do simply because a segment of the country will use anything to get at this admin. You believe Bush is the problem and illegally taking away civil liberties while giving a pass to a paper that gets Marines killed? Excuse me if I find that a wee bit pretentious!

It's funny, everyone seems to think that we have no cognizant thought of our own. We blindly follow the leader. Not so, we simply know what needs to be done and are willing to do it. So far I haven't seen anything illegal nor civil liberties being stripped away. The only one that comes close would be the NSA wiretapping flap and that is, at worst, a gray area.

Idealistic? Yeah, I guess. You're trying to reform 2000 years of history with a religion whose cornerstone is jihad. Until such time as we capitulate or they reform by their own accords we will have one hellova' bullseye painted squarely on our backs. We are fighting fanaticism and there is nothing that can be done to change them. All we can do is make it so painful for them that they seek another avenue. Hopefully that will entail the reform they so desperately need. Maybe not. Who knows? The problem boils down to will. National will. If you think publishing "leaks" is doing what is right by us then I call bulls**t. During our other wars and conflicts the MSM policed themselves. With the advent of creating the news first accomplished by Uncle Walter and TET that whole philosophy is right down the crapper. Anything goes under the "protection" of freedom. Sorry, just doesn't work for me!

When you can deliberately and with malice intend to do harm to your country while on a war footing then I simply believe you should pay a price for that.

Reagrdless of how I feel about this admin or anything else politick there is just something inherently wrong with getting our own American men and women killed to flay a hated administration. Period!

And there is absolutely no way to justify that act by blaming something or someone else.

BTW, if you truly believe we are all a bunch of mind-numbed robots you should read the archives of this site. To say we take the admin and DoD to task would be an understatement. With Keller and the NYT we are simply calling a spade a spade! It is a very sad state of affairs indeed if our own citizenry has so degraded in national patriotism that they cannot even recognize sedition when it slaps them in the face. All for the sake of the body politick? No thanks!

Princess Leia,
If I had known you were a Useful Fascist I would have sought your out a long time ago...unfortunately I didn't know I had The Force until I rescued you and your droids and Obi-Wan Kenobi taught me.

"When they intentionally published stories on how to defeat our body armor (complete with diagrams showing the angles the muj should use)..."

Whoa. I was talking about the alleged Espionage Act violations when I said they shouldn't go to jail. The publishing of that diagram was By-God Treason, in my book, and they can go both to jail and Hell for it.

If we'd hanged a few of them over that, we might not have to be arguing about the details of the Espionage Act, eh?

Cassidy:

You ask me "what precedent," which makes me think I wasn't clear. The precedent I refer to is the non-application of the law to events of this type, over the course of several generations, rather than to a named legal case.

In the law, the activity of a party has force. If you don't take effective steps to protect a copyright, for example, that has an effect on your rights under the law -- even though you filed all the proper forms. If the government, over the course of almost a hundred years, doesn't apply law X to cases of type Y, that has force.

Back when we were talking about that guy who ran for President the last time (who was it, again? Some French dude), there was some discussion about the Logan Act. I looked at it myself. It's on the books, and the wording of it is perfectly clear and precise -- but it hasn't ever been enforced, not one time has anyone been prosecuted for it.

The Espionage Act seems to be an example of that type. It has been enforced, over the generations, in a certain way; thus, people who don't violate the law in that particular way have a reasonable argument that they thought they were abiding by the law. That's an argument with legal force.

In addition, there's the problem of whether it is unconstitutionally vague. This one judge says no; many legal scholars have said yes. Will the next judge be from that camp? It's impossible to say at this point how this will shake out. What you can say is: here is a judge who made a sweeping and unexpected ruling, and for now that's how things stand. Yet we also know there will be appeals; and there are strong arguments on the other side, and a large camp of people in the legal community who will disagree.

Bernard is (again) ignoring the fact that we have a Congressional oversight committee established EXPRESSLY FOR THAT PURPOSE.

*sigh*

But hey - that's just the law. Why would we want to pay attention to the law? That's for little people, not Bill Keller. And in any event, the SWIFT program wasn't government wrongdoing. No serious critic maintains it was. Yet the NY Times outed it anyway. And Bernard wants them to be able to break the law and get away with it "just in case".

Grim, I have already posted on this subject.

The type of reasoning you refer to is far more applicable in the civil sphere than in the criminal arena. And in any event, the reason the Espionage Act wasn't enforced in the cases I cited earlier was that a public trial would have been far more injurious to national security interests than just letting it go during wartime: a fact that the NYT relied upon. So that is a non-argument.

And in any event I find that particular line of reasoning specious in the extreme. Criminal law exists to protect societal rights. If government servants have failed, in the past, to protect the rights our elected representative clearly intended for us to possess, do we lose them because of THEIR negligence? This is far different than a civil case where the plaintiff loses the right to sue due to his OWN negligence.

If you're going to insist on a term like "societal rights," we're going to have to start over.

Laws -- criminal or otherwise -- do not exist to protect society's rights, as you say. They exist to protect the rights of the people (e.g., the right to be free from robbery), which is not the same thing. The People's rights, though we refer to them as a group, are in fact individual holdings. They don't belong to the group. It's your right, or mine, and "ours" only in the sense that we both have the right.

Goverments do not have rights, they have powers, and they have duties -- specifically, they have specifically enumerated powers that are to be used only to perform their specifically enumerated duties.

1) What right is the government using the Espionage act to protect here, or what duty is it performing?

2) Is that power within its enumerated limits?

Since, as you rightly point out, we've blogged about this before (again and again), I won't go over it. There is no right being protected. There is, rather, a duty being performed. The duty is the duty to secure the common peace and lawful order; the power either is, or is not, limited by the First Amendment (which actually does protect rights). The courts are now deciding that, and I will adhere to their decision, as I expect you will also. That is entirely correct; it is the way the system is meant to work, as you are fond of saying.

Today advocates of your position have won a battle; I don't expect it to stand. If it does, so be it. If not, so be it.

In answer to your final question, you know perfectly well that the government's three branches each have a role in determining the law. The system includes both the elected official who passes a law, the President who signs it, the attorney appointed to enforce it -- who may decide that it is to be enforced only in a limited way, and with whom his 37 successors in office turn out to agree -- and the judge that is asked to rule if that decision was correct.

You ask if we "lose" rights granted by elected officials because of the appointed officials (appointed by another elected official, FWIW). The fact is that there is only one right involved in the question -- the statement that Congress shall make no law respected the freedom of the press. The question at hand is whether the government's self-appointed power -- to perform a duty it certainly does have the right to perform -- lies legitimately within the limits placed on goverment power by the Constitution.

Dozens of US Attorneys have held it does not. They are, again, also part of the system. The court is free to set them aside; another court may feel differently. That is within the court's power, and is a correct performance of the court's duty.

We are not "losing a right" if the court eventually is overturned here. Rather, one of our rights is being upheld. We are not losing a right; the government is losing a power (if indeed it does lose it).

Can the decision of previous attorneys override the decision of yet-still-previous elected officials? Yes, obviously, as a practical matter it certainly can. Can the court override either or both? Yes, obviously, as a practical matter it certainly can.

I agree with Mr. Aftergood (probably Doctor Aftergood, actually, but I'm not sure) -- regardless of all that, this is a practical increase in the government's power on a sweeping scale.

Grim, on the societal rights thing, that is semantics. You're splitting hairs. It is unduly cumbersome to say "rights that are held by the individuals who, collectively, make up society", so if I call them "societal rights" I think we all understand what I am talking about.

Any time you take a criminal law class, the first thing you are told is that the plaintiff is not the person who was robbed, but SOCIETY, which was injured when the crime was committed. If the person robbed wants to sue he may do so in civil court.

And by the way, while I was looking up something on criminal law I ran across this, which I thought I remembered from many moons ago:

A criminal statute does not lapse by failure of authorities to prosecute violations of it. If a statute is expressly repealed by the legislature, but some of its provisions are at the same time reenacted, the reenacted provisions continue in force without interruption

Your idea that mere attorneys somehow have the power to nullify a US statute by refusing to prosecute is not correct, Grim. A federal stature can only be nullified by being declared unconstitutional by the Courts or by by repealed or changed by Congress itself, insofar as I'm aware.

Lawyers do not have the power to overrule Congress by simple nonperformance of their duties.

A sexual encounter and the lying about it is nothing compared to the loss of liberty and freedom that this White House seems intent on pushing.

I don't want to refight the Clinton thing, but I just can't let that go. For the eight millionth time, it had nothing to do with "lying about sex." Everyone seems to forget that it was in the course of depositions in the Paula Jones case. Clinton was lying and cynically manipulating the justice system for the express purpose of denying a citizen (Jones) her legal rights. As the Chief Executive of the United States, he was sworn to uphold the laws and the Constitution of this country.

The only reason the bastard wasn't convicted is that we (still) have a bunch of lily-livered cowards in the Senate.

As for the rote assertion that this administration is "denying liberties and freedoms," perhaps you could point to something specific. Oh, right, they sent federal agents to shut down the NYT and arrest everyone there. So there's that.

A sexual encounter and the lying about it is nothing compared to the loss of liberty and freedom that this White House seems intent on pushing.

Just a quick correction - sodomizing subordinate employees [Lewinksy], groping campaign volunteers interviewing for jobs [Wiley], and denying promotion to those women who won't allow you to sodomize them [Jones] is a loss of liberty. To say nothing re all the hard working women who were passed over for interviews at Revlon and the UN simply because they wouldn't put out.

BTW, when is the Left going to stop with the Argument by Assertion? You claim we've lost all kinds of liberties and rights b/c of Bush, and yet you can't name any. Examples please?

I never cease to be amazed at the lack of outrage over Clinton's treatment of professional women. Feminists fought to get these things criminalized, then when a democrat broke the law, they argued it was trivial.

"I am a military vet who voted Republican every election until 2004. What drove me away was the speed and ease this administration was willing to throw away hard earned liberties and laws."

I call bullsh*t, on several levels. I have 23 years in the Army and am getting ready to retire. I contend that you are making accusations that you can't back up. Tell us how your personal liberties have been infringed by administrative fiat... please. Exactly which laws can you prove were broken?

"Not according to Congress, the federal district courts, or last time I checked, the Supreme Court."

The point being, its not a right just for the establishement journalist. Bloggers and others of us have the rights too.

But the question I have is where does the prosecution stop? Can we prosecute the journalist? his editor? his secretary? the person who read the newspaper, the person who blogged a link to the newspaper?

I wonder sometimes. The judge was quite clear about the requirements for prosecution. That is a frivolous question.

If you're going to make stuff up just so you can be paranoid, you are going to have a very unhappy life.

The judge did not make any new law here. All he did was say that a law passed by our elected representatives was Constitutional.

If it pleases you for some arcane reason to decide that we have, all unknowingly, been living in tyranny since 1917 because a well-known provision of the law (that laws passed by Congress can be enforced ... duh) or that laws do not mysteriously "go away" if they are not enforced (double duh) or Congress does not repeal them, then I really have to wonder about the state of the education system in America.

I really do not understand where people get such ideas.

But if people are not even going to bother to read what judges say before taking it into their heads that we are living in tyranny and secretaries and bloggers are going to be put into the slammer on no evidence, then I guess you kind of deserve to live in fear.

I am not a huge Bill O'Reilly fan, but I happened to catch him interviewing John Dean (who is an asshat of the first water) the other night.

It was classic TV. He asked Dean which of his precious rights had been taken away from him by the BushHitler.

Dean couldn't answer. He kept saying, "Well... none of them.... but the country COULD BE HEADED IN THAT DIRECTION" and O'Reilly kept saying, "OK John, but how are you less free than you were?"

and Dean just couldn't come up with a SINGLE EXAMPLE. What a maroon. All he kept saying was that he "felt" less free.

I submit that the reason these idiots feel less free is that they are whining about feeling less free because they are allowed to bitch and moan about fascism and jackbootery far more than they would ever have been allowed to 30 years ago. And so this "climate of fear" they are bitching about is...created by their own whining.

Of course they "feel less free". They are scaring the crap out of each other. It's like a bunch of girl scouts sitting around a camp fire telling each other ghost stories because they're oh-so-scary, but no one really believes the ghosts are real. If they'd just STFU we'd all feel a lot safer.

Furthermore, the point of wistleblower protection is that if the government is doing something illegal, it is very easy to cover it up by classifying things, etc... I personally believe that if someone leaks information about illegal activities, they should be rewarded, not punished. To punish a whistleblower is to make the argument that government should be allowed to act illegally with no repurcussions. the constitution will not abide such a thing.

One of the more idiotic comments I've ever read anywhere.

See, "whistleblowers" have very specific procedures they can follow none of which involve speaking to the press.

Further, there were no "illegal activities" involved so that of course is a moot point.

Do you people even bother to think about the logical conclusion of your statements?

Actually I am making a common sense argument. The 'prosecution of Clinton' as you call it is besides the point. A sexual encounter and the lying about it is nothing compared to the loss of liberty and freedom that this White House seems intent on pushing.

Huh?

Um, you can't name a "liberty" lost by any action of this White House.

Actus: You don't need to know classified information to support a statement that laws were broken. If you make the statement, you had best already have proof. Adam claimed that this administration "was willing to throw away hard earned liberties and laws" and I called him on it. But go ahead, tell me a law or liberty that you can prove was thrown away... tell me one. If Howling Howard couldn't, what makes you think you can?

It seems that since the Democrats believe the worst of any Republican, that justifies using any tactic to overcome them. Write down the definition of demagogue, just for kicks. Take the paper and fold it up until it is all sharp corners. Then stick it where the sun don't shine.

In addition, there's the problem of whether it is unconstitutionally vague. This one judge says no; many legal scholars have said yes.

Really?

Er,

Section 798, also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems or communication intelligence activities of the United States as well as any information obtained from communication intelligence operations. If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.

---New York Times Co. v. United States, 403 U.S. 713 (1971)Justices Douglas and White.

I am idealistic enough to believe that we can fight the terrorists by not only using the military, but also finding ways to improve the environments that spit out these young, educated Muslem males so frustrated that they are easy to brainwash. I am idealistic enough to believe that we didn't need to invade Iraq to win this war.

"But go ahead, tell me a law or liberty that you can prove was thrown away... tell me one."

Well, right now there is a lawsuit in california againt AT&T for giving the NSA information, in violation of the law. Thankfully the judge there allowed the suit to go on, turning down the government's claimed 'state secrets privilege.' So we'll soon know.

Actus, your statement that you have "lost a liberty you possessed" via the ATT case is assuming facts not yet in evidence.

It rests on two HUGE assumptions:

1. As I understood it, the information ATT provided the NSA has been ruled by the courts to belong to phone companies to do with as they please. IOW, they can sell it to other companies, etc.

2. ATT has a legal defense if they were given a certification by the federal government that they were acting to aid the national defense. That is certainly a more honorable use for this information that buying or selling it for marketing purposes, as these companies do with our private data collected and stored in enormous databases when we swipe our grocery club cards, make telephone calls, switch calling plans, etc. And if you believe for one second your every move is not being surveiled by innumerable commercial databases, you are the most naive and stupid person on planet earth actus. I am not saying this to be insulting, honest. I am saying it because it is the God's honest truth.

You are afraid of the NSA. You ought to be afraid of Safeway and Google and AOHell, who collect far more intimate information on your private habits than you can possibly imagine unless you open no accounts and pay with cash, and I don't think you do.

Well, right now there is a lawsuit in california againt AT&T for giving the NSA information, in violation of the law. Thankfully the judge there allowed the suit to go on, turning down the government's claimed 'state secrets privilege.' So we'll soon know.

First, California... ok? Second, how did this affect you, personally? Third, even if this applied to my question, there is a great deal of difference between "throw out" and "intend to act in good faith". You have heard of mitigating circumstances, right? I would contend that a good-faith attempt to fulfill a Constitutional responsibility (provide for the common defense), even if it ended up being a technical violation of the law, would be evidence that nothing was "thrown out".

You couldn't come up with a single example and you couldn't admit you were wrong. *dead horse*/*beating*

Reading through this comment thread it struck me. The bottom line for these people is that they oppose President Bush and everything he does. The NYT opposes President Bush and everything he does. Therefore they will defend the NYT, even if there is clear evidence that they have deliberately broken the law. They will do so, not based on evidence, but based on their own, "feelings," that President Bush MAY have broken the law.

That is hilarious about Dean making that statement and then not backing up with anything. I'm sure nobody with a brain is surprised however, as their entire strategy boils down to, "oppose Bush and the Republicans." Ask them what they would do differently in the fight against terrorism, and they will assure you that they have a, 'plan.' Ask them, specifically what their plan is, and they will come back to you and tell you what Bush is doing wrong. Sometimes, you just have to laugh at them.

I am idealistic enough to believe that we can fight the terrorists by...finding ways to improve the environments that spit out these young, educated Muslem males so frustrated that they are easy to brainwash.

I am idealistic enough to believe that we didn't need to invade Iraq to win this war.

Huh? Those statements contradict each other. Why do you think we are hanging around in Iraq long enough to midwife a Democracy?

Also, I'd be curious to know what your MOS and TO weapon were? See, I have a reverse-chickenhawk fallacy in play: those who never served can't criticize the war effort. ;)

If idealism worked the way it is supposed to, we would have had Utopia a long time ago and a brotherhood of man, according to the late John Lennin of the Beatles.

But to add to Janny Mae's and Fens excellent points, the problem is that these young educated Muslim males are attending college in a dang near perfect society that is heads and shoulders above what they have in the ME.

They have an ideology too; kill Americans and anyone who doesn't believe in Allah and his prophet. IOW, they made a CHOICE and need to be accountable for it.

You're correct to assert that nonfeseance does not override a law. We aren't talking about non-performance of a duty, however. We're talking about generations -- several -- performing the duty according to a common understanding of what that duty entailed. It is not that they did not enforce the law. It is that they enforced it in a way with which you disagree.

You now want to re-examine whether they were right to read the duty as they did. The judge in question has the authority to do so. Other judges have the authority to overturn him. the process is working. I shall wait for it, and accept its results.

YOU USE A LOT OF BIG WORDS , THAT DONT HAVE MEANING AS TO ANY SUBJECT HERE . JUST A LOT OF DOUBLE TALK THAT DOESN'T GIVE THE READER ANY IDEA OF ANY POINT YOU MIGHT BE TRYING TO CONVEY.
WASTE OF MY TIME TO READ.
SHOWING OFF YOUR EDU. I GUESS.
REALLY.
T.Hopkins

I always love it when someone takes the time to leave a thoughtful comment that addresses the actual ideas in one of my posts... perhaps countering them with a well thought out alternative viewpoint that might make me rethink my position.

"Actus, your statement that you have "lost a liberty you possessed" via the ATT case is assuming facts not yet in evidence."

Thats why I said 'so we'll soon know.'

"1. As I understood it, the information ATT provided the NSA has been ruled by the courts to belong to phone companies to do with as they please. IOW, they can sell it to other companies, etc."

Ruled? really. Because there are laws regulating what phone companies can do. Do you really think phone companies can sell your calling records to anyone they want?

"2. ATT has a legal defense if they were given a certification by the federal government that they were acting to aid the national defense"

Where does this defense come from?

"A refusal to dismiss a pending lawsuit is not proof of wrongdoing."

Oh it wasn't a dismissal on the merits. It was the government claiming government secrets privilege. Which was denied. Thankfully.

"Um, right or liberty taken away not named.
Day 2."

Well, the lawsuit is enforcing our statutory privacy rights. When you sue, its for a violation of a right or privilege.

"First, California... ok? Second, how did this affect you, personally? Third, even if this applied to my question, there is a great deal of difference between "throw out" and "intend to act in good faith". You have heard of mitigating circumstances, right? I would contend that a good-faith attempt to fulfill a Constitutional responsibility (provide for the common defense), even if it ended up being a technical violation of the law, would be evidence that nothing was "thrown out"."

WEll, CA is where the lawsuit is, Its in a federal court. How does it affect me personally? because there are laws that give me privacy rights in my callign records and other internet behavior (The telecoms act and the Electronic Communications Privacy ACt) and this lawsuit alleges they were violated.

Actus, you still haven't stated a "proven" right that was "thrown out", even if we stipulate the suit in California has merit. Until it is complete, you admit "we'll soon know" and not that it has been proven. You defended a statement that put this in the past tense, meaning it had already been proven. Again, name one that you can prove.

BTW, even if the CA case is decided in favor of the plaintiff, you haven't shown that your privacy was invaded illegally, have you? The reason you're having so much trouble is that there hasn't been any change in your personal freedoms... just a lot of hysterical doomsayers who hate Bush and bray about fascism. Not a bit of truth to any of it, but the talking points have been repeated so often, they reinforce each other.

"Actus, you still haven't stated a "proven" right that was "thrown out", even if we stipulate the suit in California has merit."

The right the suit in federal court in CA is suing under. You have statutory rights to privacy in some of your telecoms data. If you want to know more about the sources of these rights, read the suit documents at the EFF's website.

"BTW, even if the CA case is decided in favor of the plaintiff, you haven't shown that your privacy was invaded illegally, have you?"

You have to be intentionally obtuse to keep on missing the point. To remind you, the original post that I called bs on said:

adam said:

"I am a military vet who voted Republican every election until 2004. What drove me away was the speed and ease this administration was willing to throw away hard earned liberties and laws."

and then later I said:

First, California... ok? Second, how did this affect you, personally? Third, even if this applied to my question, there is a great deal of difference between "throw out" and "intend to act in good faith". You have heard of mitigating circumstances, right? I would contend that a good-faith attempt to fulfill a Constitutional responsibility (provide for the common defense), even if it ended up being a technical violation of the law, would be evidence that nothing was "thrown out".

You couldn't come up with a single example and you couldn't admit you were wrong. *dead horse*/*beating*

When will you get the bar exam results?

and asked again for you to name a single example that affected you, personally, that you could prove.

and you came back with:

Well, the case will be won because a law was broken.

Not even going there future-counselor, you don't know a law was broken, just an accusation at this point. Also, your answer is completely unrelated to the question... again.

Thank you for playing, past results are no guarantee of future performance, but the most reliable indicator of future behavior is past behavior... go figure.

multi billion dollar class action lawsuit.
don't make me laugh. You want to know how many classes I have been a member of? Three.

You know how much the companies involved were sued for? Billions. Now, the members of the class could number in either tens of, or hundreds of millions. For laughs and giggles,
let us assume tens of millions. That means,
oh bright naive one, that each member of the class will get the monetary equivalent of a 20.00 gift certificate with the usual one third going to the lawyers who worked their butts off to get it, and that was before Sobranes-Oxley.

Nice try.

I don't begrudge lawyers who EARN their keep.
Nor do I really frickin' care if the suit has legs or not. But in this instance, the right to privacy was defined by the contract the customer had with the service provider and existing law, which says that for law enforcement purposes
records can be requested.

Here is the rub: The company DOESN'T have to tell you IF your records were subpoenaed or by whom. They have to comply since the FCC are the ones to whom they will answer if they don't.

"That means,
oh bright naive one, that each member of the class will get the monetary equivalent of a 20.00 gift certificate with the usual one third going to the lawyers who worked their butts off to get it, and that was before Sobranes-Oxley."

The law the EFF is suing under provides that damages will not be less than 1000 per person, plus attorney's fees.

"But in this instance, the right to privacy was defined by the contract the customer had with the service provider and existing law, which says that for law enforcement purposes
records can be requested."

In a certain manner. I think you would do well to read the allegations in the documents at the link I provided.

"Here is the rub: The company DOESN'T have to tell you IF your records were subpoenaed or by whom"

"Not even going there future-counselor, you don't know a law was broken, just an accusation at this point."

I know. I've said from the beggining that this case will give us the answer. And the law that is claimed to be broken is one that protecs our privacy rights. So our rights will be infringed if that law is broken. I myself dont use ATT, but perhaps someone I call does. And in that way my records will have been shared in violation of the rights defined by law.

Actus, you defended the statement that was in past tense, as in, "had already happened". Not in the "we will see once this case is decided" tense. Your refusal to admit that Adam was woefully hyperbolic and wrong does you no credit. I am undecided as to whether you are disingenuous, willfully blind, or stubbornly obtuse. I do admit you have far more patience than I do (unless you are also ready start typing in all-caps and rip large chunks of hair from your head in frustration).

And, I was seriously wondering when you get the results from the bar exam. Not that I think we need more lawyers, just curiousity.

"Actus, you defended the statement that was in past tense, as in, "had already happened"."

Well the subject of the litigation has happened. My first post mentioning the suit said "we'll soon know."

"And, I was seriously wondering when you get the results from the bar exam. Not that I think we need more lawyers, just curiousity"

They come around november. You're quite mistaken, however, in imagining that bar exams are any test of reasoning ability. Its mostly memorization and stimulus-response -- giving canned replies to certain triggers, testing for minimum competency.

Actus, I wasn't under the impression that the bar exam was anything more than my nursing boards were (interesting to note they are actually less since reasoning was integral to our exams), so I'm not sure what you thought I was mistaken about.

Hope you get good news in November (to offset the poor showing of the Democrats in the elections perhaps?) I do give up on trying to get a substantive reply to my questions though. The litigation was not the question and you keep going back to that. I'll know better next time.

"Actus, I wasn't under the impression that the bar exam was anything more than my nursing boards were (interesting to note they are actually less since reasoning was integral to our exams), so I'm not sure what you thought I was mistaken about."

Oh. I'm curious as to why you cared about the bar exam. If you think its not a test of much.

"The litigation was not the question and you keep going back to that. I'll know better next time."

What I keep going back to is that the litigation will provide the answer to the question. Thats what I started with. Thats what I end with.

I didn't say it didn't test much, so please stop trying to put words in my mouth. I was curious because I've seen your comments on many blogs and heard you had taken the bar... nothing more than that. I had even complimented your ability to remain reasonable (if not logical) at one point on another blog. You are frequently attacked for just commenting, at times I believe unfairly. I now suspect it is from an accumulation of frustration with your refusal to acknowledge a point.

The litigation will not answer the question, no matter how it turns out. Adam's assertion was without proof and I called him on that (and his veteran status as well.) All you both have right now is a big maybe, but I'm no longer expecting an answer... sometimes an evasion or non-response is even more informative.

You keep ignoring these so that you can point to the litigation. As I said, the litigation is beside the point. Are you starting to understand why people get frustrated? Or is this an intentional debating tactic?

Are those the words I've used? No. We'll find out in the future, when the trial occurs, if they have been thrown out in the past, when the alleged acts occured. Thats all i've been saying. Sorry if right now we just dont' have the information about what exactly the administration has been doing. Though I would welcome knowing it right now.

ROFL... you keep using the word 'sorry', "I do not think it means what you think it means" ;^)

Ok actus, I was the one using those words in an attempt to have you re-read the context of what you defended. Again, you miss/ignore the point, so I'll leave it alone... I'm running out of nails. Take care.

"Ok actus, I was the one using those words in an attempt to have you re-read the context of what you defended."

I think you misunderstand me if you are calling it a defense. I said from the beggining what I say now: we will hopefully know from this litigation. If you find that a defense, perhaps that is why you find it lacking. Sorry, but thats your problem.

"But go ahead, tell me a law or liberty that you can prove was thrown away... tell me one."

Well, right now there is a lawsuit in california againt AT&T for giving the NSA information, in violation of the law. Thankfully the judge there allowed the suit to go on, turning down the government's claimed 'state secrets privilege.' So we'll soon know.

Posted by: actus at August 13, 2006 03:38 PM

Also, you stated that there will be a conviction because "a law was broken".

Well, the case will be won because a law was broken.

Posted by: actus at August 17, 2006 09:42 AM

Then you say you don't know if the law was broken until the case is decided. All this after saying you had to have classified information before you would know of something that had already happened that...... (booooom! somebody's head exploded, mine or yours?)

Anyway, you brought up the suit as an example of a right or law that was thrown away, in defense (yes, defense) of what Adam had said. Go back through the thread... never mind, don't bother.

Sorry, but thats your problem.

No, my problem is that I didn't listen when they said, "Don't feed the Actus"." I'll know better in the future. Good luck with the Bar.

"Also, you stated that there will be a conviction because "a law was broken". "

#1 its not a conviction. This is a civil trial. But I think you misunderstand, or perhaps I mistated. What I meant was if the case is won then it will be because a law was broken. This was in response to someone that presumed the plaintiff won: "BTW, even if the CA case is decided in favor of the plaintiff, you haven't shown that your privacy was invaded illegally, have you?"

The answer is yes. If the case is decided in favor of the plaintiff, it will show that the privacy was invaded in contravention of the law. Thats what it takes for the plaintiff to win in this case.

Thus this case will potentially show us that a statutory privacy right was violated. This